IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130301

Docket: M122135

Registry:
New Westminster

Between:

Clifford John
Ferguson

Plaintiff

And

Li Zhong Yang

Defendant

Before:
The Honourable Mr. Justice Weatherill

Reasons for Judgment

Introduction

[1]            
This matter concerns a motor vehicle collision that occurred on February
21, 2008.  On that day, just before 9:00 a.m. the plaintiff’s vehicle was stopped
on the west side of 8th Street, New Westminster, in front of the John Robson
Elementary School.  The plaintiff was dropping his daughter off at the school.

[2]            
The defendant, who was driving northbound on 8th Street, intended to
drop his son off at the school.  He saw a parking spot between the plaintiff’s
vehicle and a vehicle that was parked behind the plaintiff.  He made a u-turn
across 8th Street and, while proceeding at an angle into the parking spot, the
plaintiff’s vehicle backed into him.

[3]            
The event was what is commonly referred to as a low impact collision.  Damage
to the vehicles was relatively minor.

[4]            
By agreement between the parties, the only issue for determination is
liability.

The Evidence

The Plaintiff

[5]            
Shortly before 9:00 a.m. on February 21, 2008, the plaintiff was travelling
southbound along 8th Street in New Westminster.  His 3 year old son and 6 year
old daughter were in the back seat of the vehicle.  The weather was clear and
dry.

[6]            
The plaintiff was heading to John Robson Elementary School.  The school
is located on the west side of 8th Street between Royal Avenue and Queens
Avenue.  At that location 8th Street has a single northbound lane and a single
southbound lane.  These lanes are divided by a solid yellow line down the
center of the street.  There is ample room for vehicle parking on both the west
and east side of 8th Street.  The area on the west side of the street directly
in front of the school is commonly used by parents as a pick up and drop off
zone.  Signage in the area warns of a school zone.  The speed limit is 30 kph.

[7]            
The plaintiff pulled over to the curb in the drop off zone and stopped
approximately two cars lengths in front of a white van that was also parked in
the drop off zone.  He intended to back his vehicle towards the white van as a
courtesy to other parents so that they would have room to park and drop their
children off as well.

[8]            
The plaintiff testified that, no more than two seconds after he stopped
at the curb, he checked his driver’s side mirror, rear view mirror and did a
shoulder check over his right shoulder.  He saw nothing and began to back up.  He
then felt the impact of the collision with the defendant’s vehicle.  He looked
in the driver’s side mirror and saw the defendant’s car at an angle of
approximately 45 degrees to the curb.  It had come from nowhere and had hit the
left rear of his vehicle without warning.

[9]            
The plaintiff does not believe that he had actually started to back up
before the impact occurred but he cannot recall for sure.

[10]        
The plaintiff testified that the impact of the collision was aggressive
enough to push the back tires of his vehicle approximately six to eight inches
to the curb and to cause his vehicle to stall.

[11]        
Damage to the plaintiff’s vehicle was relatively minor. The vehicle was
subsequently sold by its owner before any repairs were made.

[12]        
During cross-examination, the plaintiff admitted the space between his
vehicle and the white van behind him could have been as much as two and a half
car lengths. The plaintiff confirmed that he was looking over his right
shoulder at the time of the impact and that he did not see the defendant’s
vehicle prior to impact.

Captain David MacPherson

[13]        
Captain MacPherson is a Salvation Army pastor.  He was the driver of the
white van referred to above.

[14]        
On February 21, 2008 at approximately 9:00 a.m., Captain MacPherson was
parked in the school loading zone having just delivered several children to the
Salvation Army’s Preschool.   His daughter was with him and she had escorted
the children to the school while he waited in the van.  His daughter returned
to the van and Captain MacPherson was preparing to drive away when he saw the
plaintiff’s vehicle ahead of him with its back up lights on.  He decided to
wait until the plaintiff had finished backing up before leaving.  He observed that
there was at least one parking spot between his van and the plaintiff’s
vehicle.

[15]        
He testified that, suddenly, his daughter said “what’s this guy doing?”  He
saw the defendant’s vehicle make a u-turn right in front of him from a
northbound to a southbound direction and drive directly into the rear-end of
the plaintiff’s vehicle.  He testified that the plaintiff’s vehicle was moving
backwards but only at a bare crawl at the time.  The defendant’s vehicle was at
approximately a 45 degree angle to the curb when the impact occurred.

[16]        
Captain MacPherson testified that the defendant’s vehicle did not stop
before making the u-turn or at any time before the impact.  It simply turned and
drove directly into the back of the plaintiff’s vehicle.  Captain MacPherson
described the maneuver as “aggressive” and “dangerous”.  He estimated that that
plaintiff’s vehicle had reversed approximately one to two feet before the
impact occurred.  He testified that the maneuver was not what he would have
expected to see along 8th Street in front of a school at drop off time. He was
surprised by what he saw.

[17]        
On cross-examination Captain MacPherson agreed that the space between
the plaintiff’s vehicle and his van could have been more than 20 feet although he
only recalled that the gap was approximately one parking space.  He was adamant
that the defendant’s vehicle was not stationary when the impact occurred.  He
was also adamant that the plaintiff’s vehicle reversed no more than one to two
feet prior to impact.

Evidence from the Defendant’s Examination for Discovery

[18]        
The plaintiff read in the following excerpt from the transcript of the
defendant’s examination for discovery conducted on April 27, 2011:

Q.        You indicated you were going up the hill and
that you were waiting to turn left.  Did you ever come to a complete stop?

A.         The speed itself
was almost to a crawling speed.  Very, very slow.  And then when I got the
opportunity, I made a quick turn.

The Defendant

[19]        
The defendant is a senior software engineer and is currently 44 years
old.  He has been living in British Columbia since 2000.  He received his
British Columbia driver’s license in 2001.

[20]        
On February 21, 2008, after dropping his wife off at the New Westminster
Skytrain Station at the southern foot of 8th Street, he proceeded northbound on
8th Street to the school in order to drop off his 7 year old son.

[21]        
As he approached the school, he saw a parking spot between two vehicles
along the southbound curb in front of the school.  He made a u-turn on 8th
Street from a northbound to southbound direction with the intention of parking
in the space behind the plaintiff’s vehicle.  He testified that he estimated
the space was sufficient for three to four vehicles.

[22]        
He testified that he reached the parking space, stopped his vehicle and was
preparing to “adjust his position” when the plaintiff’s vehicle in front of him
backed into his vehicle.  He estimated that he was at a no more than a 30
degree angle to the curb at the time of impact.

[23]        
He testified that his vehicle had stopped moving prior to the impact and
that the plaintiff had reversed a little less than one car length before
impact.

[24]        
During cross-examination he admitted to have made u-turns like this
previously and to knowing that, at least during school hours, that area of 8th
Street was busy with children and parents dropping their children off at
school.

[25]        
He did not think that such u-turns were a violation of any law.

[26]        
On cross-examination the defendant insisted he stopped before making the
u-turn.  However, when his previously quoted examination for discovery
transcript was put to him, he agreed that his previous answer was true. 
Notwithstanding that admission, he insisted that he did not make a “quick
u-turn” but rather a “normal u-turn”.  Again his examination for discovery
transcript was put to him and again he agreed that his examination for
discovery evidence was true.

[27]        
The defendant insisted that he had come to a full stop behind the
plaintiff’s vehicle before the impact occurred one to two seconds later.  He
also testified that he had sounded his horn to warn the plaintiff that he was
present.  There was no mention in the defendant’s statement given to ICBC the
day following the accident that he had done so.

[28]        
When it was put to him that Captain MacPherson saw the plaintiff’s
vehicle reversing before the defendant had made his u-turn, the defendant
responded by saying Captain MacPherson’s view must have been blocked by the
defendant’s vehicle, which he claimed was behind the plaintiff’s vehicle when
the impact occurred.

[29]        
Captain MacPherson’s evidence that the defendant’s vehicle did not stop
after completing the u-turn before the collision occurred was also put to the
defendant.  The defendant remained adamant that he was completely stopped prior
to the accident.

[30]        
It was suggested to the defendant on cross-examination that there was
only one car length between the plaintiff’s vehicle and the white van prior to
the defendant making his u-turn.  His response was to the effect that Captain
MacPherson must have been lying because if there had only been one car length
he would not have been able to go into the parking spot and the plaintiff could
not have reversed.

Analysis

[31]        
Since there is a divergence in the evidence regarding what took place
immediately prior to the collision, it is necessary to evaluate the credibility
of the witnesses.

[32]        
The plaintiff was an honest and forthright witness who gave his evidence
in a credible manner, candidly and without exaggeration.

[33]        
Captain MacPherson was an independent witness who knew neither of the
parties and had no reason to favour one version of the event over the other.  He
also gave his evidence in a straightforward, honest and credible manner.  It is
not surprising that counsel for the defendant, wisely in my view, did not comment
in any way on the credibility of Captain MacPherson.

[34]        
The defendant’s evidence, on the other hand, was fraught with
inconsistencies and obvious exaggerations.  He stated at trial that he had come
to a full stop before commencing the u-turn but during his examination for
discovery he had testified that he had not come to a complete stop but rather
was proceeding at a “crawling speed”.  At trial he testified that the u-turn
was not a “quick u-turn” but rather a “normal u-turn”, yet during his
examination for discovery he described it as a “quick turn”.  He testified at
trial that he was fully stopped at a 30 degree angle to the curb behind the
plaintiff’s vehicle before it began to reverse, yet the damage to his vehicle
is consistent only with its left front corner having been behind the
plaintiff’s vehicle.  He testified at trial that the plaintiff was reversing at
a speed of approximately 15 kph when the impact occurred.  In my view, such a
speed was, in the circumstances, simply not possible.  Finally, at trial he
testified that he sounded his horn prior to the collision, yet he made no
mention of this important evidence of a warning in the statement he made to ICBC
one day after the accident.

[35]        
I have no difficulty concluding that the accident occurred in the manner
described by the plaintiff and Captain MacPherson.  After the plaintiff pulled
in to the loading zone in front of Captain MacPherson’s van, there was
approximately two to two and a half car lengths between the two vehicles.  The
plaintiff was in the process of closing that gap by backing up as a courtesy to
give other parents a place to park as well.  Before reversing, the plaintiff
checked his driver’s side mirror, his rear view mirror and he also looked over
his right shoulder.  He saw nothing in his path.  As he commenced reversing his
vehicle, the defendant performed an aggressive and illegal u-turn from the
northbound lane of 8th Street and attempted to maneuver into the space between
the plaintiff’s and Captain MacPherson’s vehicles.  The plaintiff’s backup
lights were on.  The defendant ought to have seen them and ought not to have
attempted the aggressive maneuver that he did.

Statutory Framework

[36]        
The circumstances of this case are governed in part, by the following
provisions of the Motor Vehicle ACT, R.S.B.C. 1996, c. 318 (“Act”).

155 (1) Despite anything
in this Part, if a highway is marked with

(a) a solid double line, the
driver of a vehicle must drive it to the right of the line only,

(b) a double line consisting
of a broken line and a solid line,

(i)  the driver of a vehicle
proceeding along the highway on the side of the broken line must drive the
vehicle to the right of the double line, except when passing an overtaken
vehicle, and

(ii)  the driver of a vehicle
proceeding along the highway on the side of the solid line must drive the
vehicle to the right of the double line, except only when finishing the passing
of an overtaken vehicle, and

(c) one single line, broken or
solid, the driver of a vehicle must drive the vehicle to the right of the line,
except only when passing an overtaken vehicle.

(2) Subsection (1) (b) (i) and
(c) do not apply if a driver is avoiding an obstruction on the highway and
first ascertains that the movement can be made with safety and without affecting
the travel of any other vehicle.

156 If the driver of a vehicle
is causing the vehicle to enter or leave a highway and the driver has
ascertained that he or she might do so with safety and does so without
unreasonably affecting the travel of another vehicle, the provisions of
sections 151 and 155 are suspended with respect to the driver while the vehicle
is entering or leaving the highway.

….

168 Except as provided by the
bylaws of a municipality or the laws of a treaty first nation, a driver must not
turn a vehicle so as to proceed in the opposite direction

(a) unless the driver can do
so without interfering with other traffic, or,

(b) when he or she is driving

(i)  on a curve,

(ii)  on an approach to or
near the crest of a grade where the vehicle cannot be seen by the driver of
another vehicle approaching from either direction within 150 m,

(iii)  at a place where a sign
prohibits making a U-turn,

(iv)  at an intersection where
a traffic control signal has been erected, or

(v)  in a business district, except at an intersection
where no traffic control signal has been erected.

169 A person must not move a
vehicle that is stopped, standing or parked unless the movement can be made
with reasonable safety and he or she first gives the appropriate signal under
section 171 or 172.

…

193 The
driver of a vehicle must not cause the vehicle to move backwards into an
intersection or over a crosswalk, and must not in any event or at any place
cause a vehicle to move backwards unless the movement can be made in safety.

[37]        
Section 119 of the Act defines “business district”:

"business district" means
the territory contiguous to a portion of a highway having a length of
200 m along which there are buildings used for business, industrial or
public purposes occupying

(a) at least 100 m of frontage
on one side of that portion, or

(b) at least 100 m
collectively on both sides of that portion,

and includes that portion of the
highway;

[38]        
The law in this province is clear that a driver engaging in a maneuver
that is fraught with danger where other drivers have no reason to anticipate
the maneuver will be liable in negligence: Dhah v. Harris, 2010 BCSC 172
at para. 29; Dickie Estate v. Dickie (1992), 5 B.C.A.C 37 at 42.

[39]        
Here, the defendant failed to observe the rules regulating traffic.  In
particular, he breached s. 155(1)(c) of the Act by performing a u-turn
over the solid yellow line on 8th Street.  The exception set out in s. 156 of
the Act is inapplicable because the defendant was not in the process of
entering or leaving the street.  The defendant was also in violation of s. 168
of the Act by performing a u-turn (referred to the in Act as a
“reverse turn”) in a “business district”.  I am satisfied on the evidence
before me that there was an excess of 100 meters of frontage of buildings used for
public purposes on the roadway in question, thereby meeting the definition of
“business district” in the Act.

[40]        
In Hough v. Wyatt, 2010 BCSC 1375, the defendant attempted a
u-turn from a bus stop at the crest of a hill that was not an intersection, at
a location were u-turns were prohibited.  The court stated:

[24]      Having initiated an inherently dangerous manoeuvre,
Mr. Wyatt failed to keep a look-out for traffic approaching from the
north.  I conclude that he was focusing on traffic approaching from the
south and failed to see Mr. Hough’s vehicle.  Mr. Wyatt was negligent and
his negligence caused the collision.

[27]      I am also not persuaded
that Mr. Hough should have anticipated Mr. Wyatt’s illegal manoeuvre or that if
he had done so, he could have taken effective steps to avoid the
collision.  Mr. Hough said he did not see an illuminated signal light on
the rear of Mr. Wyatt’s vehicle.  An activated signal light might indicate
an intention to pull into the southbound driving lane and drive south, when it
was safe to enter the lane.  It would be entirely unreasonable, in my
view, to expect a driver observing the signal light to anticipate that Mr.
Wyatt would pull across the lane as a prelude to a prohibited u-turn. 

[41]        
In my view, the u-turn performed by the defendant in an attempt to
secure a parking spot across the street in a school zone where parents were
busy dropping their children off for school was a maneuver fraught with danger.
Moreover, I am satisfied that the plaintiff’s backup lights were illuminated, that
the defendant ought to have seen them and that he ought to have anticipated the
plaintiff’s vehicle was in the process of reversing into the space the
defendant was attempting to move into.  Captain MacPherson saw these backup
lights.  Had the defendant been keeping a proper look out, he would have seen
them as well.

[42]        
The defendant has failed to satisfy me that the plaintiff was
contributory negligent in any way.

[43]        
The law does not require perfection on the part of the plaintiff to
guard himself against every conceivable eventuality.  He must only guard
himself against those eventualities that a reasonable person ought to have
foreseen, within the ordinary range of human experience.  The plaintiff was
entitled to proceed on the assumption that all other vehicles would do what is
there duty, namely observing the rules of traffic: Pacheco (Guardian ad
Litem of) v. Robinson (1993), 75 B.C.L.R. (2d) 273 (C.A.) at para. 11; Dechev
v. Judas, 2004 BCSC 1564 at para. 22.

[44]        
The plaintiff checked the area around his vehicle by looking in his side
and rear view mirrors and by looking over his right shoulder.  He did all that
he ought to have done.  A reasonably prudent driver should not be expected to
anticipate that while in the course of backing up, another vehicle will perform
an aggressive and illegal u-turn from the other side of the street in an
attempt to occupy the space behind him.

[45]        
The plaintiff had no warning of the impending collision.  I do not believe
the defendant’s evidence that he was stopped and that he honked his horn prior
to the collision.

[46]        
In Carson v. Henyecz, 2012 BCSC 314, Madam Justice Hyslop stated
at para. 99

 The duty imposed on a
reversing driver is not just when the driver starts to reverse, but throughout
the entire reversing procedure and to its completion.  The object is to be
aware as reasonably possible to what is behind the driver and in the driver’s
path while in reverse.

I agree with those comments.  I find that, in the circumstances
here, the plaintiff conducted himself appropriately and was as aware as
reasonably possible to what a reasonable driver should have anticipated would
be in his path while reversing his vehicle.  He could not have reasonably
anticipated that the defendant would do what he did.

Conclusion

[47]        
The defendant is 100% liable for the collision that occurred.

[48]        
The plaintiff is entitled to his costs at scale B.

“Weatherill J.”